Did Jeffrey Toobin Let Ted Cruz Lie About Prop 8?

There was an excellent profile of Sen. Ted Cruz (R-TX) by Jeffrey Toobin in The New Yorker last month: “The Absolutist.” You should check it out. You get a real sense of Cruz's history (his father fled Cuba before Castro), and why he is the way he is (conservative father and indoctrination into constitutional issues at the Free Enterprise Institute at the age of 12), and why he is formidable (national debate champion, “...on his way to becoming one of the most notable appellate advocates in the country”), and just how young he is (too young to have voted for Reagan).

All of that is good and worthwhile. But then Toobin ends the piece with a Cruz quote:

“Since I became a senator, a year and a half ago, I’ve kept two promises to the people of Texas. I have endeavored to do what I said I was going to do and I have always told the truth. It says something about Washington that those are perceived as radical acts.”

I have always told the truth. Yet earlier in the piece we get this quote from a speech Cruz gave at the 2014 Texas Republican Convention in Ft. Worth:

“Marriage is under assault,” Cruz told the crowd. “It is under assault in a way that is pervasive. We’re seeing marriage under assault in the courts, including, sadly, the Supreme Court of the United States. It struck down the California marriage laws. California had a referendum. They asked the voters of California, ‘Do you want marriage to be a traditional marriage between one man and one woman?’ And the voters of California—those crazy right-wing kooks—said, ‘Yes, now that you mention it, we like marriage to be between one man and one woman!’ Went to the U.S. Supreme Court, and the U.S. Supreme Court said, ‘You can’t say that,’ and struck it down. You want to know what judicial activism is? Judicial activism is judges imposing their policy preferences on the words of the Constitution.”

I'm no national debate champion, let alone one of the most notable appellate lawyers in the country, but I know Cruz isn't telling the truth here. Because he knows the U.S. Supreme Court did not “strike down” California marriage laws. Here's what happened.

The voters of California passed Prop 8 by a 52-48% margin. Two years later, the federal district court in San Francisco overturned it, declaring Prop 8 unconstitutional under the due process clause. The state chose not to appeal, but others did: the initiative's proponents, along with Imperial County. After various judicial perambulations, the case wound up before the U.S. Supreme Court in 2013, which ruled, 5-4, that those who brought the appeal (Prop 8's proponents and Imperial County) did not have legal standing to bring the appeal. Case dismissed.

The U.S. Supreme Court struck down California marriage laws? It didn't rule on California marriage laws.

This might seem like semantics to most people but I can guarantee you one of those people would not be “one of the most notable appellate advocates in the country.” Cruz said what he said, fudged the truth of what he said, because he wanted red meat for the Texas crowd to sink its teeth into. He was being a politician. He was being a D.C. insider. He was not telling the truth.

Ted Cruz gave at the 2014 Texas Republican Convention:offering red meat at the expense of truth.